Federal Communications Commission

*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

Working for an organization that’s helped lead a decade-plus fight on a single set of policy issues, it’s hard to know where to begin.

I could just start in the present. After all, intervenors and amici supporting the Federal Communications Commission’s rules filed at the DC Circuit just last week. My organization was one of almost two dozen parties joining that intervenors’ brief.

That’s too long a history to choose from if I’m going to say anything coherent in a short post. So I’ll make it even harder and start in 1946.

Why so far back? Because of a Supreme Court case called Marsh v. Alabama, a decision about public sidewalks owned by private companies. That case has always reminded me of common carrier communications networks (and law school – but that’s another story).

To be sure, the questions surrounding Net Neutrality pre-date the modern “Open Internet” era at the FCC, in cases much closer to home for the agency. Beginning in the early 1960s, it started wrestling with questions about how to treat computer services offered over phone networks.

*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

The U.S. Open Internet Debate is a Legal Battle

The open Internet debate in the U.S. is essentially a legal chess game. Americans need to understand the core legal battle at stake in order make sense of the rhetoric and media coverage related to the Open Internet debate as well as the importance of the FCC’s Open Internet Order adopted in early 2015.

Why is the open Internet a legal chess game? Because it’s an ongoing legal battle – before the FCC, the courts, and potentially through Congressional legislation - over classification of broadband Internet access service (BIAS) under federal statutory law. Is BIAS a “telecommunications service” and thus a common carriage service, or is BIAS an “information service and thus not a common carriage service?

To understand the core legal battle at stake, we need to start with some important historical content. Since the early 20th century, telecommunications carriers have borne two separate, special legal statuses in the United States – as common carriers and as public utilities. The origins of these two legal statuses arise from different bodies of law, and each imposes obligations for different reasons. Throughout the 20th century, telecommunications carriers have been common carriers under federal law, and public utilities under states’ laws. For this reason, both the federal and state governments have regulatory jurisdiction over telecommunications carriers.

The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web.

U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.

In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust "marketplace of ideas" without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.

"The openness of the Internet has transformed our civic life, our culture, and our economy, and net neutrality is essential to ensuring that ISP gatekeepers do not undermine the freedom of speech and access to knowledge we enjoy online," said EFF Staff Attorney Kit Walsh. "Internet service providers stand between subscribers and the rest of the world, giving them the power to interfere with our communications in order to further their own interests. We’re urging the court to approve rules that protect users’ rights to freely express themselves and access information online."

The U.S. Supreme Court is hearing oral arguments today on the constitutionality of sanctioning television and radio broadcasters for indecency, even where the use of an expletive is unscripted and “fleeting” or “isolated.”

The decision in this case has the potential to be “really quite a blockbuster” if it reopens past Supreme Court precedent that gave the government special latitude to regulate matters that are broadcast on the public airwaves, explained former acting solicitor general Neal Katyal during the American Constitution Society’s recent Supreme Court preview.

Verizon, apparently bent on challenging any amount of government regulation of the Internet, is aiming its resources at the Federal Communications Commission's recent regulations intended to keep service providers from blocking content in cyberspace.

Michael Glover, a Verizon senior vice president, issued a statement saying, "We are deeply concerned by the F.C.C.'s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers."

Verizon's decision demonstrates that even the most weak and watered-down rules aren't enough to appease giant phone companies. It's ironic that Verizon is unhappy with rules that were written to placate it, and it's now clear that it will settle for nothing less than total deregulation and a toothless FCC in the relentless pursuit of profit.

In a guest post for ACSblog, the Electronic Frontier Foundation's Abigail Phillips examined the FCC's regulatory proposal on net neutrality, writing that according to FCC statements, the new rules "appear to be riddled with loopholes and exemptions, to the point where the FCC's declaration that the order represents bright-line rules and a framework for predictability is hard to reconcile."